By Jackline Polo
Mediation is a dynamic, structured, interactive process where a neutral third party assists disputing parties in resolving conflict through the use of specialized communication and negotiation techniques.
Mediation is a continuation of the negotiation process by other means whereby instead of having a two way negotiation, it now becomes a three way process whereby the mediator, a neutral third party, assists the parties in identifying the problem and coming up with a viable solution that is mutually satisfying to both. Mediators are individuals trained in negotiations skills, who bring opposing parties together and attempt to work out a settlement or agreement that both parties accept. The role of a mediator is not to give solutions to the dispute but assist the parties to come to an agreement.
MEDIATION IN THE CONSTITUTION OF KENYA
Article 159 of Constitution of Kenya, 2010 recognizes and provides for Alternative forms of Dispute Resolution (ADR) including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms. The Article provides that ADR shall be promoted as long as they do not contravene the Bill of Rights and are not repugnant to justice or inconsistent with the Constitution or any written law. As part of the ongoing judicial transformation, the Judiciary has embraced mediation as one of the ways of reducing the backlog of cases in court.
Mediation is one of the most successful ways of resolving disputes. The most ideal situations where mediation is recommended or most effective are where the disputants have an existing relation which they would like to foster beyond solving the dispute. e.g. in the family set up or an existing business relationship. This is partly because Mediation is an informal process in which the disputants are free to engage without too much technicality and legal requirements of strict proof and tangible evidence.
With a view to enhancing family unity and building family relations, FIDA Kenya advocates for mediation at the first instance as way of settling family concerns. Over 70% of all the cases received by FIDA Kenya are resolved through Mediation, the remaining about 20% to 25% are the ones that go to court.
The kind of cases solved through family Mediation are; child custody and maintenance, husband and wife differences, disputes involving land and inheritance.
Mediation is, however, not applicable in the case of abuse, divorce or separation: where there is violence or threats of harm, sexual violence and threats to harm or threat to life.
BENEFITS OF MEDIATION
CHALLENGES OF MEDIATION